R v Millard

District Court of NSW|2024-03-13

Solicitors: William O'Brien & Ross Hudson Solicitors ODPP File Number(s): 2021/00212089

Introduction

By Notice of Motion, dated 30/11/2022, Scott Dwayne Millard (the applicant) seeks a costs certificate in accord with s 2 Costs in Criminal Cases Act, 1967 (the Act) on behalf of the applicant. The Notice of Motion was supported by two affidavits of the applicant's solicitor, James Castillo, dated 30/11/2022, and 07/02/2024. It is uncontroversial that the application which was ultimately listed before me for argument at Penrith on 13/03/2024 was delayed from the time the DPP directed that there be no further proceedings against the applicant on 29/11/2022, pending the decision of the NSWCCA in Rodden v R [2023] NSWCCA 202.
As noted, the application was heard on 13/03/2024. Mr Berents of counsel who appeared in the trial proceedings, appeared on behalf of the applicant, and Mr Marney, Crown Prosecutor appeared for the Crown. In support of the application, and in addition to the Notice of Motion and the supporting affidavits of James Castillo, solicitor, Mr Berents prepared very detailed written submissions, dated 06/02/2024. The Crown filed an affidavit of Sophie Evans, solicitor in response to the application as well as written submissions prepared by Ms Vella, Crown Prosecutor, dated 29/02/2024 in the cost's application. The application for costs was opposed by the Crown.

History of the matter

As already noted, the solicitor for the applicant prepared two affidavits in support of the application and Ms Evans, solicitor with the carriage of the trial proceedings from the office of the DPP NSW also filed an affidavit in response to the application. It is from those documents that the history of the proceedings can be determined.
The applicant met the complainant, Maddison Bell when they were both inpatients at the "high dependency unit" at Nepean hospital in July 2021. The "high dependency unit" is a mental health facility within the hospital for treatment of people with serious mental health issues. The complainant at the time was diagnosed with PTSD, anxiety, depression, psychosis, and borderline personality disorder. After her discharge from the "high dependency unit" the complainant returned to live at her premises in Kingswood. On the afternoon of 24 July 2021, the applicant attended the residence of the complainant. It was agreed that the applicant was to stay the night at the complainant's premises. The two consumed alcohol during the course of the afternoon over a period of three or four hours. At one point the applicant had a shower and after this it is alleged that he engaged in nonconsensual sexual activity with the complainant Ms Bell, giving rise to the charges.
The applicant was arrested by police and charged on 25 July 2021. He was refused bail from that date until 5 October 2022 when bail was granted. On 20 May 2022 the applicant was committed for trial having pleaded not guilty to the charges of sexual assault which ultimately included 5 counts of sexual intercourse without consent, and 2 counts of sexual touching without consent. The trial was initially listed on 24 November 2022 at Penrith.
On 30 September 2022 the applicant caused a subpoena to issue upon Nepean Blue Mountains Local Health District for the complainant's mental health records. On 10 November 2022 5 boxes of the complainants redacted health records were produced to the District Court at Penrith and access orders were granted to the applicant and the Crown. On 15 November 2022 the applicant served a report of Dr Michael Robertson, pharmacologist and forensic toxicologist dated 15 November 2022 upon the Crown.
On 17 November 2022 the applicant submitted the first "no bill" application to the Crown. This application was rejected by the Crown on 24 November 2022. On 18 November 2022 the Crown served a police statement made by the complainant, Maddison Bell, dated 18 November 2022. This statement was in addition to her earlier statement, dated 2 August 2021. On 23 November 2022 the Crown filed and served a notice of motion to vacate the trial date, together with an affidavit in support. On the same day the Crown served a letter from Dr Kristof Mikes-Liu, Medical Director of Mental Health Services at the Nepean Blue Mountains Local Health District, dated 22 November 2022, regarding the complainant's current mental health and her capacity generally to take part in the trial proceedings as the crucial prosecution witness.
On 28 November 2022, in the District Court at Katoomba the Crown presented a fresh indictment, and the applicant was arraigned and pleaded not guilty to the 7 counts on the indictment. A jury was empanelled, and the Crown prosecutor made an opening address to the jury. On the same day the applicant served a "Defence Tendency Notice" upon the Crown. On 29 November 2022 the Crown served a further police statement from the complainant, dated 28 November 2022. On that date, the applicant made an application to the trial court with the consent of the Crown for a Basha enquiry with respect to the complainant. Following the evidence given by the complainant in the Basha enquiry, the applicant made a further "no bill" application to the Crown. The Crown refused this second "no bill" application.
On 29 November 2022 the Crown made an application to the court to discharge the jury and vacate the trial. The application was opposed by the applicant and refused by the court. Thereafter and following a short adjournment the DPP directed no further proceedings in relation to each of the counts on the indictment, with all counts withdrawn, and dismissed and the applicant being formally discharged.

The legislation

A legally aided applicant is eligible for a certificate pursuant to s 2 Costs in Criminal Cases At, 1967 (the Act): (see Rodden v R [2023] NSWCCA 202).
The Act empowers a court to grant a costs certificate to a defendant (an accused) under the Act, where the defendant is discharged or acquitted in relation to the offence concerned. Section 2 of the Act relevantly states: 1. (1) the court or judge or magistrate in any proceeding relating to any offence, whether punishable summarily or upon indictment, may- 1. where, after the commencement of a trial in the proceedings, a defendant is acquitted or discharged in relation to the offence concerned, or a direction is given by the Director of Public Prosecutions that no further proceedings be taken - grant to that defendant a certificate under this Act, specifying the matters referred to in section 3 and relating to those proceedings.
Section 3 of the Act states: 1. (1) A certificate granted under this Act shall specify that, in the opinion of the court or judge or magistrate granting the certificate - 1. if the prosecution had, before the proceedings were instituted been in possession of evidence of all the relevant facts, it would not have been reasonable to institute proceedings, and 2. that any act or omission of the defendant that contributed, or might have contributed, to the institution or continuation of the proceedings was reasonable in the circumstances.
It is agreed between the parties to the application that there was no act or omission on the part of the applicant that contributed or might have contributed to the institution or continuation of the proceedings. It is uncontroversial that the applicant had sought a 'no bill' of the charges on two occasions, notably on 17/11/2022, and again on 29/11/2022 which were both rejected by the Crown.
Sections 2 and 3 of the Act have been judicially examined in a number of authorities leading to the following general propositions. The legislation represents a "middle course" between two extremes (Allerton v DPP). One extreme is the common law and English position where costs were granted in criminal cases only in exceptional circumstances. The other extreme is where costs almost automatically follow the event: Latoudis v Casey (1990) 170 CLR 534; R v Moore [2015] NSWSC 1263. The provisions are intended to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished (R v Manley [2000] NSWCCA 196 per Simpson J at [74]).
In Allerton v DPP at 559-560, the Court of Appeal observed: "As we read s 3(1)(a) the task of the court or judge, justice, or justices in specifying their opinion is indeed to ask the hypothetical question, as stated by Sugarman P in R v Williams. But that question is addressed to evidence of all of the relevant facts, whether discovered before arrest or before committal (if any); after committal and before trial; during the trial; or afterwards admitted under s 3A of the Act. All of the relevant facts proved, whenever they became known to the prosecution and whether or not in evidence at the trial, must then be considered by the decision-maker. The decision-maker must then ask whether, if the prosecution had evidence of all of the relevant facts immediately before the proceedings were instituted it would not have been reasonable to institute the proceedings."
In R v Johnston [2000] NSWCCA 197, Simpson J said at [16]: "The circumstances in which a certificate may be granted are those stated in s 3 of the Act. They may conveniently be restated as involving the following process: (i) an evaluation of all of the evidence as it emerged at trial. (ii) an assumption that all that evidence was available to the prosecution before the proceedings were instituted. (iii) a determination whether, if the prosecution had been in possession of all of that evidence, it would not have been reasonable to institute the proceedings."
In R v Hannah Quinn (No 2) [2021] NSWSC 494, Adams J referred to the meaning of "reasonableness" in the context of the Act, when she stated at [127]: "As to what is meant by not being "reasonable", Hoeben CJ at CL observed in Beatson v R [2015] NSWCCA 17 at [12], that the test of unreasonableness is not based on the test of whether there is any reasonable prospect of conviction, whether a jury would be likely to convict, whether there is a prima facie case, or whether the prosecution was malicious (citing R v Manley op. cit. at [10] per Wood CJ at CL). Similarly, as Hamill J observed in R v Moore op. cit. at [6 (6)]: "A decision to prosecute is not "reasonable" simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial".
In R v Pavey (1997) 98 A Crim R 396 at 401, the CCA said: "The legitimate interest which the community has in serious crimes being prosecuted by the Director of Public Prosecutions is not disputed. That cannot, in our judgement, make it reasonable as between the Crown and the accused/applicant to prosecute in the face of significant weaknesses in the Crown case of which the Crown acting reasonably, ought to have been aware."
The authorities considering sections 2 and 3 of the Act were extensively reviewed in Mordaunt v DPP and Anor [2007] NSWCA 121 by McColl JA to which I have been referred by both Mr Berents and the Crown. In Mordaunt her Honour set down a series of propositions representing considerations relevant and appropriate to the determination of an application for a costs certificate. Those propositions have had repeated endorsement in numerous cases since that time, and in particular by Fullerton J in Cittadini v R [2010] NSWCCA 291 at [6] - [9] where her Honour summarised the principles to be applied in determining an application as follows: "a. The test of unreasonableness provided for in s 3(1) of the CCC Act is raised by the hypothetical question posed as being whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings. b. The defendant bears the onus of showing that on an objective analysis of all the relevant facts it was not reasonable to institute the proceedings. It is not for the Crown to establish, or the court to conclude, that the institution of proceedings was, or would have been, reasonable. Although the test of reasonableness is not prescriptive, the extent to which there is any contradictions of any expert evidence concerning central facts in issue, or inherent weakness in the prosecution case, is relevant to the power to grant a certificate as it is the exercise of the residual discretion to grant a certificate in s 2 of the CCC Act. c. The fact that there is evidence sufficient to establish a prima facie case does not inevitably mean that it was reasonable to institute the proceedings, especially where there is contradictory evidence and where it is reasonable to expect a prosecutor to make some evaluation of the evidence in that light. d. In order to answer, "the hypothetical question" it is necessary to ascertain the "relevant facts", whenever they became known to the prosecution, and whether or not they were in evidence at the trial, and then to undertake an objective analysis of those facts (see Allerton v Director of Public Prosecutions (1991) 24 NSWLR 550)."
Ultimately, the applicant bears the onus of proving that the institution of the proceedings by a hypothetical prosecutor possessed of all of the relevant facts would not have been reasonable, and must persuade the court, on the probabilities, to exercise its discretion to grant a certificate pursuant to s 2 of the Act. In other words, the judicial officer considering an application pursuant to s 2 of the Act must determine what are "all the relevant facts" and assume the prosecution to have been "in possession of evidence of" all of them, and must determine whether, if the prosecution had been in possession of those "relevant facts", before the criminal proceedings were instituted, "it would not have been reasonable to institute them". The judicial officer considering the matter must consider the position on the "relevant facts" as at the date that he/she considers the application, with the benefit of hindsight, not the situation at the time that the police charged the accused, and an applicant for a certificate must succeed on both the "facts issue" and the "reasonableness issue".
It is uncontroversial when considering the "facts issue", an accused person (the applicant) can adduce evidence of matters that were not before the court at the hearing, pursuant to section 3A of the Act which is headed, "Evidence of further relevant facts may be adduced". Relevantly s 3A provides as follows:
"(1) For the purpose of determining whether or not to grant a certificate under s 2 in relation to any proceedings the reference in s 3(1)(a) to "all the relevant facts" is a reference to: a. The relevant facts established in the proceedings, and b. Any relevant facts that the defendant has on the application for the certificate, established to the satisfaction of the court or judge or magistrate, and c. Any relevant facts that the prosecutor, or in the absence of the prosecutor, any person authorised to represent the Minister on the application, has established to the satisfaction of the court or judge or magistrate that: i. Relate to evidence that was in possession of the prosecutor at the time that the decision to institute proceedings was made, and ii. were not used in the proceedings. (2) Where, on an application for a certificate under s 2 in relation to any proceedings, the defendant adduces evidence to establish further relevant facts that were not established in those proceedings, the court or judge or magistrate to which or to whom the application is made may: a. Order that leave be given to the prosecutor in those proceedings or, in the absence of the prosecutor, to any person authorised to represent the Minister on the application, to comment on the evidence of those further relevant facts, and b. If the court, judge or magistrate think it desirable to do so after taking into consideration any such comments, order that leave be given to the prosecutor or to the person representing the Minister to examine any witness giving evidence for the applicant or to adduce evidence tending to show why the certificate applied for should not be granted and adjourn the application so that that evidence may be adduced. (3) If, in response to an application for a certificate under s 2 in relation to any proceedings, the prosecutor or, in the absence of the prosecutor, any person authorised to represent the Minister on the application adduces evidence to establish further relevant facts that were not established in those proceedings, the court or judge or magistrate to which or to whom the application is made may: a. Order that leave be given to the defendant, on the evidence of those relevant facts, and b. If the court or judge or magistrate think it desirable to do so after taking into consideration any of those comments, order that leave be given to the defendant to examine any witness giving evidence for the prosecutor or that authorised person."
An example of "further relevant facts" is the material contained in the court file or correspondence from the applicant to the Crown making submissions, as is the case herein that the proceedings be "no billed". Such evidence would not, ordinarily be before the court during committal proceedings or a summary trial, or trial.

The applicant's submissions

As observed previously in these reasons, Mr Berents prepared detailed written submissions on the application. He identified that the test of unreasonableness provided for in s 3(1) of the Act is raised by the hypothetical question posed as being whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings. In order to answer "the hypothetical question" it is necessary to ascertain the "relevant facts" whenever they became known to the prosecution, and whether or not they were in evidence at the trial, and then to undertake an objective analysis of those facts. As the authorities disclose, the applicant bears the onus to establish that it was not reasonable on the part of the prosecution to initiate proceedings. A prima facie case of itself does not inevitably mean it was reasonable to institute proceedings. The question of the reasonableness of instituting proceedings is not based upon whether there is a reasonable prospect of conviction.
Counsel referred to R v Trevor Dunne (NSWSC Unrep. 17 May 1990) where Hunt J said: "As I understand the provisions of s 3, I have to put myself in this hypothetical place of the prosecution possessed of knowledge of all of the facts which have now become apparent, either at the trial or by way of additional evidence in the application, and I have to determine whether, with the knowledge gained from such an omniscient crystal ball, it would have been unreasonable to institute the prosecution. Where the applicant could have made those facts known to the Crown before the proceedings were instituted or continued, but did not, I must specify whether that act or omission was reasonable in the circumstances. That second provision, found in paragraph (b) of s 3(1), is clearly intended to encourage persons charged with criminal offences to disclose all of the relevant facts either before or at the committal stage, or between committal and trial, unless it is reasonable for them not to have done so. In that sense, what is disclosed to the police before being charged and what is put before the magistrate in the committal proceedings is relevant, as are the fact that a "no bill" application was made and the contents of that application."
Once the court has put itself in this hypothetical situation it is then called upon to consider whether it would not be reasonable to institute proceedings. This is what Mahoney JA in Treasurer of NSW v Wade & Dukes (NSWCA unrep. 16 June 1994) calls the "reasonableness issue". Reasonableness is to be judged upon the assumption the prosecution was "in possession of evidence of all" of those facts.
In both written and oral submissions Counsel for the applicant identified relevant facts applicable to the reasonableness of the institution of proceedings. He relied upon the affidavits of the solicitor for the applicant, James Castillo. He submitted that the evidence that was in the possession of the Crown in respect to the reliability of the complainant as a result of her mental health conditions and the likely interaction between her mental illness and her drug use. In these circumstances and in light of the expert evidence served by the applicant it would have been unreasonable to commence proceedings. Counsel submitted that the court would consider the following relevant facts in relation to whether it would not have been reasonable to institute proceedings: 1. The applicant was arrested and charged on 25 July 2021. 2. The applicant was committed for trial on 20 May 2022. 3. The applicant was refused bail upon being charged on 25 July 2021 and spent a period of 14 months in custody before he was granted bail on 5 October 2022. 4. The proceedings were listed for trial on 24 November 2022. 5. The relevant mental health records of the complainant, Ms Bell were not produced by the Crown, but in response to a subpoena issued by the applicant in September 2022. 6. On 10 November 2022 the mental health records were produced to the District Court at Penrith and access orders were granted to both parties. 7. On 15 November 2022 the Crown was served with an expert toxicology report relevant to the complainant and the toxicology results from 25/07/2021, prepared by Dr Michael Robertson, dated 15 November 2022. 8. On 17 November 2022 a "no bill" application was submitted to the Crown on behalf of the applicant. 9. On 23 November 2022 the court was made aware that a clinician had assessed that the complainant had the capacity to participate in the proceedings, but her condition was likely to be changeable. 10. On 24 November 2022 the Crown rejected the "no bill" application made by the applicant. 11. On 28 November 2022: 1. The applicant served a defence tendency notice upon the Crown and filed the notice in court. 2. The Crown presented an indictment and called the applicant for trial and a jury was empanelled, and the Crown Prosecutor made an opening address to the jury. 1. l. On 29 November 2022: 1. The Crown served a fresh statement from the complainant on the applicant. 2. An application for a Basha enquiry with the complainant was made by the applicant without any objection by the Crown. 3. Evidence was taken from the complainant in the Basha enquiry where she admitted to taking her prescribed medications on the day of the enquiry but remained suffering active hallucinations, in particular "hearing voices". 4. The applicant submitted a further "no bill" application to the Crown. 5. The Crown rejected the 'no bill' application. 6. The Crown applied to discharge the jury and vacate the trial. That application was refused by the trial court, and the DPP directed there be no further proceedings in relation to the counts on the indictment, with all counts withdrawn and dismissed and the applicant formally discharged.
Counsel submitted that given the applicant on multiple occasions presented the evidence to the Crown that supported not only the difficulty in the complainant's reliability but also her lack of capacity to give evidence; it could not therefore be submitted that any act or omission of the applicant played any part in the continuation of the proceedings (s 3(1)(b) of the Act). Counsel differentiated and contrasted this case with that considered in R v Manley (2000) 49 NSWLR 203 at [14] where Wood CJ at CL stated: "Matters of judgement concerning credibility, demeanour and the like are likely to fall on the other side of the line of unreasonableness, being matters quintessentially within the realm of the ultimate fact finder, whether it be judge or jury."
In this case Counsel submitted there was no matter of fact, or demeanour that was at issue. The fundamental difficulties with complainant's reliability were self-evident on the papers that the police simply ignored or placed to one side in their investigation.
Mr Berents asserted the court would find that it would not have been reasonable to institute proceedings had the DPP been in possession of the ultimate evidence at trial, including: 1. The complainant's first statement dated 2 August 2021 where she disclosed that she is diagnosed with PTSD, anxiety, depression, psychosis, and borderline personality disorder. 2. The mental health of both the applicant and the complainant was apparent from the moment that the applicant was charged by police. Paragraph 3 of the "Crown case statement" states that the complainant and the applicant met as inpatients at the "high dependency unit" at Nepean hospital. 3. On 17 June 2021, prior to the allegations, the complainant was recorded to be suffering hallucinations. 4. On 30 May 2022 a psychiatric assessment of the complainant reported that she was experiencing auditory hallucinations which included hearing five (5) voices, one sounding like a walkie-talkie. The material contained a handwritten note made by the complainant corroborating this account that refers to a voice sounding like a "walkie-talkie, following me everywhere and the group of men are working together to find me". The complainant refers to seeing "demons" living in reflective surfaces. 5. A handwritten note made by the complainant in the health records refers to the complainant's disassociation, which stated that she was not in control of her body when one of the two other personalities takes over. 6. The NSW Health Progress Note dated 21 July 2021 (3 days prior to the allegations), states that the complainant was "hearing voices and telling her to self-harm and are becoming loud to ignore". 7. The mental health progress notes on 28 July 2021, state that "she reported hearing voices before the assault". 8. The nature of the severity of the complainant's mental health hallucinations can be demonstrated in her handwritten note of 8 June 2021 which refers to the complainant's belief that she had located "tracking chips" in her hospital gown and ripped them up and destroyed them as well as the complainant's belief that she had a "tracking chip" in her brain.
Counsel noted that prior to the trial the report of Dr Michael Robertson dated 15 November 2022 was served on the Crown. The Crown did not serve a report to contradict it. Dr Robertson opined that, "of the drugs detected in the blood and urine, diazepam and Delta-9-tetrahydrocannabinol (THC) are the most likely to affect cognition, including the accuracy of her perception, recollection and memory." Dr Robertson outlined the common effects of diazepam and cannabis to include drowsiness, fatigue, weakness, and ataxia. Vomiting, constipation, dizziness, dry mouth, sedation, and fatigue among others. Amnesia may occur, with or without inappropriate behaviour. He went on to opine that upon withdrawal, "a confusional state, delirious, hallucinations, psychosis, vomiting and sweating may occur."
The hospital records on 15 June 2021 and 4 October 2020 both contain self-report statements from the complainant that her use of cannabis triggers or exacerbates her psychosis and she admitted to using cannabis on the day of the allegations. As to their likely effects on cognition, Dr Robertson provided the following at paragraph. 33: "With respect to her cognition, including the accuracy of her perception, recollection, and memory both diazepam and THC can impair cognition including perception, recollection, and memory, particularly in the first few hours after use. The possibility of material impairment increases as the dose increases; when first using the drug or increasing the dose; when drugs such as diazepam and THC are combined and when drugs are used ad hoc i.e., not daily."
Counsel submitted that the records produced and in the possession of the Crown support that the complainant had been prescribed and medicated with diazepam almost daily in June and July 2021.
Beyond the medical and mental health evidence, counsel also referred to the complainant's credit and, in particular, her interactions with police and prosecutors. The complainant had misrepresented her use of amphetamines to the police, which were clearly present in the toxicity screen conducted by the hospital. Her explanation is of her consent for the applicant staying at her premises were directly contrary between her statement to police and her disclosures in the conference with prosecutors. The complainant's medical history demonstrated an increased propensity to disassociation when smoking cannabis and not complying with counselling requests, both of which were present at the time of the allegations.
The material also discloses that the complainant told hospital staff that she had been abused by two men that she had to go to court for in 2022. Most tellingly, the complainant frankly admitted to the hospital that her dreams were so real that she did not know if they were true or not.
Mr Berents emphasised that the current application is not a generalised criticism of complainants who suffer from mental health difficulties, or mental illness, as this complainant self-evidently does. Neither is it a general criticism of reliability of people who suffer from poor mental health. Rather he submitted the court should find that it is unreasonable given the specific and documented circumstances as they apply to this case, and the abundance of evidence in the Crown's possession.
In oral submissions before the Court Mr Berents raised a number of issues. Firstly, and factually, the complainant's state of mind at the time of the alleged incidents was so impacted by her severe and pervasive mental illness, exacerbated by her drug misuse, and her ECT treatment disclosed in the health records. This combination of factors so impacts upon her reliability, the complainant complained of hearing voices whilst in the "high dependency unit", she was reported as being floridly psychotic, and was suffering auditory hallucinations even on the day of the alleged incidents. Her poor mental health was exacerbated by smoking cannabis. The mental health records which were in the possession of the Crown, all informed decisions of the police and the DPP in instituting and continuing the proceedings. He submitted that the Crown ought reasonably to be aware of the reliability issues concerning the complainant. Ms Bell was in the "high dependency unit" at Nepean hospital in the days prior to the alleged incident, and the trial proceedings had been delayed because of her continuing complex mental illness. The DPP had possession of the mental health records of both the complainant and the applicant.
Among the relevant facts now known, and in the possession of the Crown was that the complainant had to be removed by police from train tracks, where she had gone in an effort to suicide. On one occasion it is apparent that the complainant was so distressed and agitated that when police approached her, she brandished a knife. Counsel submitted that the approaching trial clearly exacerbated her severe anxiety and psychotic disorder.
Counsel submitted that in the face of such a profound, pervasive, and complex mental illness it was unreasonable on the part of the police and the prosecution to institute and to continue proceedings. The issue of the complainant's fundamental incapacity and the impact of her mental illness and drug use upon her reliability and cognition generally remained unaddressed by police and then the DPP until the application to discharge the jury and adjourn the trial made by the Crown was rejected. It was only then that the charges were withdrawn, and the proceedings discontinued. In the weeks prior to the trial the DPP had sought unsuccessfully to adjourn the trial based upon the deteriorating mental health of the complainant. And a fresh statement was taken from her. On 29 November 2022 in the Basha enquiry the complainant disclosed that she was experiencing auditory hallucinations. In the week leading up to the trial the complainant was in the "high dependency unit" of Nepean hospital. She was mentally unwell, experiencing suicidal ideation as well as being physically unwell. Both the police and the DPP were aware of the condition of the complainant, which regrettably was consistent with her long history of complex and pervasive mental illness recorded in the Hospital mental health notes.
Counsel concluded that the applicant has demonstrated that in all the circumstances, it was not reasonable to institute the prosecution in light of the final evidence and that a certificate should be granted. The court could and should look at the ultimate decision made by the Crown on 29 November 2022, when faced with the reality of the fundamental incapacity of the complainant due to her severe mental illness, that she could not participate in the trial, and therefore discontinued the proceedings. This evidence, these relevant facts were known to the police and prosecution from the outset.
Mr Berents conceded that this was in essence a "word against word" case, and normally in such cases issues as to the credibility of the complainant would not fall on the side of unreasonableness. However, it was submitted in the particular factual circumstances of this matter there were a number of highly unusual factors. Firstly, it is uncontroversial that the complainant suffered psychosis at an about the time of the alleged offending. That psychosis and its symptoms continued; she was continuing to suffer from auditory hallucinations on 29 November 2022 when giving evidence in the Basha enquiry. It is uncontroversial, documented in the health records that were subpoenaed that the complainant self-harms when psychotic, on occasions "banging her head into the wall". These injuries were observed in the SAIK examination. The complainant admitted in hospital admissions that she was hearing voices, on the day prior to the alleged incident.
The toxicology report of Dr Michael Robertson whilst it does not establish when the complainant took the substances, does establish the effect of these substances upon her. In her own statement the complainant admitted she consumed cannabis on the day of the alleged offences as well as drinking alcohol. The extensive reports in the mental health notes identify misuse of cannabis by the complainant and its negative impact on her mental health. Counsel submitted that the relevant question is not if the cannabis or drugs made her "high", but does it exacerbate her symptoms of mental illness. The health records produced under subpoena demonstrate unequivocally that drug misuse does aggravate her mental illness. The relevant facts (known to the police and the prosecution) demonstrate not only the chronicity and complexity of the complainant's mental illness at the time of the alleged incidents, but also that she was smoking cannabis and consumed alcohol on that day. The records disclose this exacerbates the symptoms of mental illness.
On 15 June 2021 the subpoenaed records disclose that the complainant was being treated for psychosis due to her cannabis use. This goes solely and fundamentally to the reliability of her account of events, including her account as to whether consent was given or otherwise to the sexual activity. The report of Dr Michael Robertson also provides unchallenged evidence of the long-term use and withdrawal from the use of diazepam has in the context of chronic, and complex mental illness. The subpoenaed records disclose the depth and complexity of the complainant's psychotic illness. Hallucinations that there were 5 people in her body at one time, computer chips in her brain and in her hospital gown. These hallucinations and symptoms of psychosis were specific to her leading up to, and at the time of the alleged offences, and at the time of the trial. Her own handwritten note referred to 2 persons who had committed the assault upon her for which she was to attend court in 2022, as referenced in the applicant's "no bill" applications. Counsel submitted that the issue is one of basic reliability. The individual obligation falls upon the police and prosecution to consider the complainant's reliability, apprised of all the relevant facts. The complainant, Ms Bell thought she was capable. The prosecution knew how hard it would be. The subpoenaed material, the medical notes, the mental health records, the reports as to her deteriorating mental health and anxiety as the trial approached establish that it was not reasonable to institute or continue the proceedings.

The Crown submissions

Whilst Mr Marney Crown Prosecutor appeared in the costs application for the Crown on 13/03/2024, Ms Vella Crown Prosecutor had earlier prepared detailed written submissions in response to the application on 29/02/2024. The crown noted that the trial commenced on 28/11/2022 at Katoomba District Court, when the applicant was arraigned on a fresh Indictment presented that day. A jury of 12 was empanelled and the Crown opened to the jury. The Crown concedes that the Court has jurisdiction to hear and decide on the application, and generally accepts the history as outlined in the affidavit of James Castillo, solicitor, dated 07/02/2024 and recited in Mr Berents' written submissions.
In written submissions the Crown referred to the joint judgement of Simpson JA, Davies, and Hamill JJ in Steven Allan Cox v R (No 2) [2017] NSWCCA 129, which summarises the general propositions that emerge from the authorities, acknowledging that each case will turn on its own facts and circumstances and on whether the court forms a particular opinion contemplated by s 3(1) of the Act. In Cox it was held that the Act represents a "middle course" between two extremes, one being the common law and English position where costs were granted in criminal cases only in exceptional circumstances, and the other extreme is where costs follow the event as a matter of course. Secondly, the provision is intended "to create an environment in which earlier rigid resistance to the reimbursement of costs incurred by an acquitted defendant was diminished". Thirdly, the provisions allow the court to relieve a person who has been acquitted (or discharged following the withdrawal of proceedings by the DPP) of the financial burden of defending themselves in criminal proceedings without casting any criticism on police or prosecutors. Fourthly, the prosecution cannot resist a certificate on the basis of some "ill-defined community interest in bringing a particular accused, or kind of matter, before the courts". Fifthly, the mere fact that a court of criminal appeal has entered a verdict of acquittal on the ground that the jury's verdict was "unreasonable or unable to be supported having regard to the evidence" is not, of itself, sufficient to justify a finding that it was unreasonable to prosecute. Sixthly, "it is not sufficient to establish the issue of unreasonableness in favour of an applicant for a certificate that, in the end, the question for the jury depended upon word against word; in a majority of such cases, it would be quite reasonable for the prosecution to allow those matters to be decided by the jury; it would be different where the word upon which the Crown case depended had been demonstrated to be one which was very substantially lacking in credit". Further, a decision to prosecute is not "reasonable" simply because there was a prima facie case, or because there were reasonable prospects of a conviction, or because a magistrate committed the matter for trial, and finally the applicants silence is not a disentitling factor under s 3(1)(b). In other words, the failure of an applicant to participate in a recorded interview is not a matter that "contributed, or might have contributed, to the institution or continuation of the proceedings".
The Crown submitted that it is well-established that the hypothetical question posed by s 3(1)(a) is addressed to evidence of "all of the relevant facts, namely those facts discovered before arrest or before committal (if any), after committal and before trial, during the trial, or afterwards admitted under s 3A of the Act. The Crown identified the allegations in the Crown Case Statement, together with the report of Dr Michael Robertson, the material produced under subpoena by Nepean Blue Mountains Local Health District, the letter from Dr Kristof Mikes-Liu, dated 22 November 2022, all of which are "relevant facts" for the purpose of the s 3 discretion. The Crown submitted this information constitutes facts relevant to the reasonableness of the decision to institute the proceedings. The Crown urged the court to consider these "relevant facts" in exercising the s 3 discretion, noting for the purposes of the s 3 discretion, a reasonable prosecutor is not attributed with the ability to predict "the exercise of discretion residing in the trial judge" (R v Moore [2015] NSWSC 1263 at [28]).
The Crown submitted that it is most compelling that in the decision of Mordaunt (op cit) at [36] (c) specifically delineates the institution of proceedings to be within the purview of the investigating officials, and NSW police and the extensive sophisticated police operation and the identification of the incriminating messages and other evidence that founded the charges. Subsequent complicated legal argument on admissibility is a different and pertinent question. The institution of proceedings in s 3 refers to the time of arrest or charge not to some later stage such as committal for trial or the finding of a bill.
The Crown case was that the events grounding the offences as set out in the indictment and the Crown case statement factually occurred, and that they did so without the consent of the complainant. The primary issue at trial was consent. The fact of sexual acts taking place was not raised as an issue in the "no bill" applications made by the defence, and is not in dispute. The Crown submitted this negates arguments presented by the applicant that the complainant's evidence of sexual acts was not reliable due to the mental health and/or the intoxication of the complainant. The onus is on the applicant to establish that, in light of the evidence now available, it would not have been reasonable to institute proceedings, and that the accused has not unreasonably influenced or impacted institution or continuation of proceedings. On this latter issue the Crown concedes there has been no act or omission by the applicant that would have contributed, or might have contributed, to the institution or continuation of the proceedings under s 3(1)(b) of the Act.
The Crown submits there has always been a prima facie case, albeit acknowledging this is not a factor that should be considered under "reasonableness". To support the complainant's evidence as to a lack of complaint, there were injuries found on the SAIK examination consistent with sexual intercourse. As well as the evidence of the complainant, there was a reasonably proximate complaint, the police found the applicant at the complainant's front door after she had locked him out. The complainant had made a complaint to her friend, whom she asked to call the police, and the applicant's daughter corroborates the complainant's evidence about the applicant using her phone to send text messages. This evidence, independent of the complainant's account tends to buttress her reliability as to the events giving rise to the charges.
The Crown disputes the submission of the applicant that the question of the reliability of the complainant was "fundamentally" of the nature that her evidence would not be capable of being accepted by a jury or finder of fact, and therefore this does not make commencement of proceedings unreasonable. The Crown submitted that it would be a matter for the applicant to establish how the complainant's mental health conditions (or any intoxication) were relevant to the issue of whether there was consent, and the accused's knowledge of that consent. The Crown submits that the question of the reliability of the complainant was, in fact, a matter that quintessentially was within the realm of the ultimate factfinder.
The Crown also submitted that it is important to note that any decision by the Director of Public Prosecutions about the termination of proceedings is irrelevant to a consideration of costs, and the issue is always a court's view on the reasonableness in the hypothetical circumstances posited by s 3 of the Act. The Crown asserted that this complainant is not the first, nor will she be the last complainant to have been under the influence of alcohol and or drugs when the offending occurred, if that is indeed what the expert report served by the applicant establishes. Further, the complainant is also not the first complainant to have experienced mental health impairments or have a lengthy history of complex mental health conditions. The letter of Dr Kristos Mikes-Liu states, "I formed the view that: she understands the purpose of court proceedings, she understands that she will be questioned, she understands that questions may be challenging; she understands the requirement to tell the truth. Taking this into consideration, I formed the view that she has capacity to participate in proceedings". The Crown submitted that the question of the reliability of her evidence concerning the issue of consent, when weighed against other evidence was not such that it was unreasonable to commence proceedings. This is a question left to juries and factfinders regularly, it is the quintessential task of the jury in matters such as this.
In oral submissions, Mr Marney Crown prosecutor submitted that the case was essentially a 'word against word' case, and therefore for a jury to decide. Issues as to the reliability of the account given by the complainant, including the issue of consent are quintessentially for the tribunal of fact to determine. He submitted that there is no corroborative evidence either supportive or not supportive of the issue of consent. The presence of injury as seen in the SAIK examination is in essence neutral on this. Accordingly, the case was a classic "word against word" case. Normally this does not fall on the side of unreasonable.
In oral submissions the Crown stated that poor mental health, even chronic, complex, and pervasive mental illness does not equate automatically with unreliability. It was noted that the complainant in her statements provided some specificity as to the nature of the events giving rise to the charges on the indictment. A jury may well have been warned or directed by the judge as to the reliability of the complainant's account having regard to the evidence of her poor mental health at the time, and potentially her use of cannabis or other drugs, and the impact of this, if any, upon the reliability of her account. Ultimately, however, this is a matter for the trier of fact to determine. It of itself does not render the decision to initiate and continue with the proceedings unreasonable.
In respect to the hallucinations suffered by the complainant prior to the alleged incident and subsequent, the Crown conceded they were somewhat bizarre and unrealistic. However, the complainant herself was aware of this, and there is no evidence that she completely invented or fabricated scenarios. In complaining about the sexual assaults, the Crown submitted that the complainant was talking about "real incidents". There is no dispute that the applicant and the complainant engaged in sexual activity. The dispute is around the issue of consent. The complainant gave a detailed account to police of the incident, she described actual pain when engaging in sexual intercourse, gagging when the applicant's penis was in her mouth, and giving some detail about the various positions the applicant placed her in. The Crown submitted that this evidence consistently demonstrated that the complainant could differentiate between truth and non-truth, between reality and hallucination.
Ultimately in both written and oral submissions the Crown asserted that the applicant has failed to satisfy the burden of establishing, on the balance of probabilities that, if the prosecution had, before the proceedings were instituted against him, been in possession of evidence of all the "relevant facts", it would not have been reasonable to institute the proceedings. The question of reliability of the complainant, even allowing for the medical evidence and history of complex mental health impairments which were changeable, were matters which were entirely reasonable to leave to the jury to determine when the totality of the evidence is considered, and do not point to unreasonableness in the commencement of proceedings. The Crown asserted that the applicant was not claiming that the complainant was in any way deluded or suffering from psychosis in regard to the "fact" that sexual acts took place, rather the issue was that of her consent. The Crown asserted that the court having regard to the totality of the evidence, would decline the application to grant a certificate.

Determination

It is uncontroversial as has been submitted by the applicant and the Crown that the Court has jurisdiction to hear and determine the application. The relevant provisions of the Act have been identified by the parties as highlighted in these reasons. The task of the Court when dealing with an application under s 2 of the Act, is to ask the hypothetical question, whether, if the prosecution had evidence of all the relevant facts immediately before the proceedings were instituted, it would not have been reasonable to institute the proceedings (Allerton v DPP op cit pp 559-560). The task is to be viewed with the benefit of hindsight (the omniscient crystal ball) looking at the situation at the time of discharge or acquittal, and not at the time the proceedings were commenced (R v Pavey (1997) 98 A Crim R 396). In other words, the Judicial Officer when considering an application under s 2 must determine what were "all the relevant facts" and assume the prosecution to have been "in possession of evidence' of all of them, and must determine whether, if the prosecution had been in possession of those 'relevant facts", before the criminal proceedings were instituted, "it would not have been reasonable to institute them". The judicial officer considering the application, must consider the position as at the time he/she considers the matter, with the benefit of hindsight, not the situation at the time that the police charged the applicant.
The principles to be applied as briefly summarised above, are not controversial. Section 3 establishes on the applicant the onus of establishing the facts that are to be stated in any certificate granted. A Judge considering an application for a certificate under s 2 and 3 of the Act should divide his/her task into the two categories, the "facts" aspect, and the "reasonableness" aspect. It is for the applicant for a certificate to succeed on both the "facts issue" and the "reasonableness issue".
1. Whilst I accept that in the event the trial proceeded it would have been, in essence a "word against word" contest and in such circumstances issues as to the credit of a crucial Crown witness are normally matters for a jury or the trier of fact, the relevant facts of this case demonstrate its highly unusual characteristics. Had the trial proceeded it would have involved as crucial, a determination which would have required, as fundamental a consideration of both the honesty and reliability of the complainant, two overlapping but distinct considerations. In the event the trial proceeded it is apparent that the Crown case was reliant substantially, if not almost exclusively upon the account of the complainant, as to the events giving rise to the charges, including as a crucial element, her lack of consent. It is uncontroversial having regard to the voluminous material obtained on subpoena from Nepean Blue Mountains Local Health District that at the time of the alleged offences the complainant was a person who was being treated for a plethora of serious mental health disorders, including, PTSD, anxiety, depression, psychosis, and borderline personality disorder. The mental health records disclose that the complainant suffered from complex and pervasive mental health issues at the very least during the period from 2019 until 2022, and up to the date of the trial. Her psychosis manifest itself in bizarre auditory and visual hallucinations which were repeatedly recorded in the mental health notes, as well as in the complainant's own handwritten material produced under subpoena that was issued by the applicant, and her psychosis existed before the incidents, at the time of the incidents, and following the incidents all the way to 29/11/2022 when the complainant gave evidence of experiencing hallucinations at the time of the Basha enquiry. It was apparent to police at the time of charging the applicant that both he and the complainant had been inpatients at the "high dependency unit" at Nepean hospital mental health facility in the days leading up to the alleged offences. For reasons not entirely clear nor explained in submissions made to the court by the Crown it appears there was no effort by the police or the DPP until a report of Dr Kristof Mikes-Liu sought by the DPP, dated 22 November 2022 to ascertain or disclose detail of the chronicity, complexity and seriousness of the complainant's mental illness, and the impact of her mental illness on her cognition, recall, reliability, and capacity or otherwise generally to participate in a criminal trial. Whilst that report determined that the complainant had the capacity to participate in the proceedings, it also disclosed that her condition, "for the foreseeable future" was "likely to be changeable". Dr Mikes-Liu opined that the complainant's primary diagnosis at the time was of 'borderline personality disorder', and her last presentation to the MHU was on 21/11/2022, where she was discharged the same date. This in the context of uncontested evidence seemingly ignored or considered irrelevant by the police of the complainants chronic and pervasive mental illness over many years including at the time of the incidents.
In my view it was correctly submitted by both the applicant and the Crown that the existence of mental illness per se, and even mental illness that may be exacerbated by the misuse or ingestion of illicit drugs, including cannabis on the part of the complainant, is not a fact of itself that would of itself render a decision to institute or continue the proceedings unreasonable, but that submission, at least on the part of the Crown pays insufficient regard to the pervasiveness of the complainant's complex mental health issues in the particular circumstances and facts of this case. The relevant facts disclose a number of issues arising from the complainant's mental illness that was present before, and at the time of the incidents, and subsequent that I am satisfied on balance substantially undermined the reliability of her accounts of events. In addition, the opinion of Dr Michael Robertson suggests, consistent with the mental health records, that the ingestion of cannabis likely exacerbated the complainant's psychosis. The mental health notes record her use of cannabis, and its impact on her mental illness. In addition, the medical notes and mental health records disclose that the complainant's psychosis and her associated distress and hallucinations did not diminish. She has required admissions after the incidents, and the material discloses that on at least two occasions she was retrieved from railway tracks by police when she was seeking to self-harm or commit suicide. This was in the period leading up to the trial, and as her evidence in the Basha enquiry disclosed, the complainant continued to experience auditory hallucinations as of 29 November 2022, which led to the application by the Crown to adjourn the trial. I am satisfied having regard to the plethora of material, which includes the extensive mental health records subpoenaed by the applicant in the weeks before the trial, establishes the chronicity, complexity and pervasiveness of the complainant's mental illness, and its fundamental impact upon her reliability. I am satisfied having regard to the mental health records and the complainant's evidence in the Basha enquiry, as well as the opinion expressed by Dr Kristos Mikes-Liu as to the changeability of her mental health condition, that the complainant was incapable of participating in the trial thus fundamentally undermining her reliability.
The relevant facts known to the police, the DPP and to the applicant establish that on 25 July 2021 the complainant underwent a toxicology analysis of her blood and urine. In screening tests cannabinoids and benzodiazepines were detected. Drugs detected in her urine included, amphetamine, and methamphetamine. Drugs detected in her blood included diazepam, Delta-9-tetrahydrocannabinol, and Delta-9-THC acid. Dr Michael Robertson provided expert opinion based upon the toxicology results taken from the complainant on 25 July 2021, the day after the incidents. In his report dated 15 November 2022, Dr Robertson opined that of the drugs detected in the blood and urine of the complainant, diazepam, and Delta-9-tetrahydrocannabinol are the most likely to affect cognition, including the accuracy of her perception, recollection, and memory. As to their likely effects on cognition, he said both diazepam and THC can impair cognition, including perception, recollection, and memory, particularly in the first few hours after use. Dr Robertson opined that the possibility of impaired cognition increases when drugs such as diazepam and THC are combined. When combined with alcohol the likelihood of impairment further increases. It is uncontroversial that the applicant and the complainant consumed alcohol at the complainant's premises on 24 July 2021. The presence of the drugs, having regard to the opinion expressed by Dr Robertson, together with the complainant's recorded use of cannabis throughout the mental health records, and its negative impact upon her psychosis, I am satisfied further compromises her reliability.
As has been extensively documented in the factual material in possession of the parties, the complainant suffers from a range of serious and long-standing mental health disorders namely, PTSD, anxiety, depression, psychosis, and borderline personality disorder. The combination of these disorders renders the complainant mentally unstable. The medical records revealed constant attempts at suicide, including efforts to place herself in front of a train on at least two occasions, jumping from a window from the third level, causing lacerations on her thigh, using a razor blade to cut or slash herself, attempting to hang herself with a shoelace, and swallowing magnets. The mental health records disclose detail of her auditory and visual hallucinations recorded in the days prior to her discharge, a few days before 24 July 2021. The records disclose that the complainant complained of being assaulted by two persons for whom she was required to go to court in 2022 and of tracking devices planted in her hospital gown and in her brain. In her own handwritten note, dated 20 March 2022 the complainant stated that she had been disassociating badly, and more often. She disclosed that she was no longer in control of her body, that there were two others that control her body. She named them as Eric and Posie. She described Eric as a 29-year-old dark skinned male with short black hair. In her handwritten note she stated, "Eric is loud, controlling, and really wants to hurt people and wants to control Maddi by telling her what to do, and if she doesn't do it, he will do it and punish her. Posie is very quiet and shy. She doesn't play like most kids her age. When she takes over, she mostly just sits there and doesn't reply to anyone like when we disassociate, I Maddi am not in control. It's like I'm in a doctor's waiting room, with either Posie or Eric, mostly Posie. I know what's going on sort of because there is a TV in the waiting room which shows clops of what's happening like when Eric was in control, and he almost went for a swipe card. It's either Eric or me Maddi in control most of the time because Posie is really scared and nervous and she feels safer in the waiting room and when we disassociate, it's really scary my body is just frozen, we are all trying to answer whoever is talking to us, but we yell and scream and bang, but no one can hear us. I Maddi have noticed that someone touching me on my hand or shoulder can bring me out of it, and it really upsets me Maddi that people don't notice that I'm disassociating, and they get pissed off."
I am satisfied that the relevant facts disclose that the complainant suffered chronic poor mental health prior to and at the time of the incidents, and her mental health continued to deteriorate up to the time of the trial in November 2022. Such is the complexity of her mental illness as disclosed in the extensive mental health records, and in the complainant's own handwritten notes, that it rendered her incapable of participating in the trial. This deficiency in the Crown case was evident from the outset. The complainant because of her chronic, complex, and profound mental illness was a poor historian, and unreliable in her account, and essentially incapable of taking part in the criminal proceedings. It is not simply a question of the complainant's medical condition rendering her an unreliable witness, but rather the particular factual circumstances as disclosed in the mental health records, the complexity and pervasiveness of her mental health condition and its fundamental impact upon her reliability. This was brought to the attention of the Crown on two separate occasions in the "no bill" applications made by the applicant on 17 November 2022 and again on 29 November 2022. I am satisfied with proper regard to the particular relevant facts in this case as identified in the application that the applicant has satisfied both the "facts issue" and the "reasonableness issue" required of the application and it is an appropriate exercise of my discretion to grant the costs certificate as sought. In all the circumstances, the fact that the prosecution was instituted, and maintained, notwithstanding the existence of the uncontested mental health history which was available to the police and the DPP from the outset satisfies me of the reality that there were no reasonable prospects of securing a conviction and it was not reasonable in those circumstances to institute and/or continue the proceedings. Further, there is nothing about the case, in those circumstances, which warrants the exercise of a residual discretion against the granting of the certificate where the statutory test is otherwise satisfied.
Taking into account all the circumstances that I have endeavoured to outline in these reasons I have decided that it is appropriate that I exercise my discretion in favour of the applicant and grant a certificate pursuant to s 2 of the Costs in Criminal Cases Act 1967, and I direct that the applicant prepare a certificate, show it to the prosecutor, and send it to my associate, so that in due course it may issue.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 December 2024

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